ART + LAW
128
ABOVE: View of a corridor
in the Assemblée Nationale
Française decorated with
paintings by Hervé Di
Rosa created in 1991 titled
L’histoire en peinture de
l’Assemblée nationale (The
History of the Assemblée
Nationale in Painting).
© Courtesy of the artist. Photo: Pierre
Schwartz.
BELOW: Detail of the above
work by Hervé Di Rosa.
© Courtesy of the artist.
Photo: Pierre Schwartz.
Those who create, interpret, disseminate, or
exhibit works of art contribute to an exchange of ideas
and opinions that is vital to a democratic society
Currently, although the painting has remained
in place, the photograph of it on the Assemblée
Nationale’s website has been taken down. Is there
still such a thing as freedom of artistic expression?
Examples abound that suggest that the answer to
that question is no.
In the same vein—and what follows is hardly
an exhaustive compilation—what are we to think
of the removal by the city of Los Angeles on November
10, 2018, of a statue of Christopher Columbus
that had been standing near Grand Park
since 1973 because it was seen as a “symbol of
oppression” by Native American groups? Or of
the suppression by the University of Notre Dame
in Indiana, one of the oldest and most prestigious
institutions of higher learning in the United
States, of frescos of Columbus painted in the late
nineteenth century because they might convey a
distorted image of American colonial history? San
Francisco took down a statue whose showing was
purportedly offensive to Native Americans. These
decisions were not isolated, and even the city of
New York, which is certainly not known for its
sectarianism, fi nds itself embroiled in similar controversies
with regard to several statues of Theodore
Roosevelt and, once again, of Columbus.
Finally, a poem published in the magazine The
Nation was attacked because its author, who was
not himself handicapped, used the word “crippled”
in his writing.
Clearly, many arbitrary sentences have been
handed down in the name of a communalist vision
of art. This has been done without taking
into account the artistic value of the condemned
works or their creators’ intentions, much less
their posthumous rights.
Freedom of expression, which notably includes
artistic expression, is, except in cases where it is fl agrantly
abused, protected by legislation in all democratic
countries. In the United States, although the
freedom of artistic creation is not covered by a specifi
c autonomous statute, it is part of the freedom
of expression guaranteed by the First Amendment
to the Constitution. In Europe, the European Court
of Human Rights is one among several institutions
that supervises and enforces the right of free expression
guaranteed by Paragraph 1 of Article 10, which
is one of the fundamental pillars of its democratic
society. In a decision in the case of the Vereinigung
Bildender Künstler (Visual Artists’ Guild) vs.
Austria on January 25, 2007, the court stated that
“those who create, interpret, disseminate, or exhibit
works of art contribute to an exchange of ideas and
opinions that is vital to a democratic society. An obligation
on the state’s part not to impinge unduly on
their freedom of expression arises from that fact.”
As we witness this struggle between the opposing
forces of an attempt to communalize art through
censorship on the one hand and the existence of a
legal arsenal that guarantees freedom of expression
to creators on the other, we conclude by reminding
artists and their public and private sponsors that
they are subject only to the laws approved by the
representatives of the governments of the nations
of which they are citizens. They are not compelled
to comply with any other regulations nor are they
obliged to give in to ideological intimidation and
accusatory imprecations that purport to represent
progress, when they in truth belong to another era
and negate the vision that a free spirit may have of
an open world in which diversity and differences are
beautiful, natural, and unforced.
“Good night, censors. That will be all.” ‘‘ ‘‘